Amendments to the Florida Rules of Evidence Case No.: Sc 13

Filing # 57031639 E-Filed 05/30/2017 09:59:12 AM

IN RE: AMENDMENTS TO THE FLORIDA RULES OF EVIDENCE CASE NO.: SC 13-

THREE-YEAR CYCLE RECOMMENDATIONS OF THE FLORIDA BAR CODE AND RULES OF EVIDENCE COMMITTEE Thomas D. Shults, Chair, Code and Rules of Evidence Committee (CREC), and John F. Harkness, Jr., Executive Director, The Florida Bar, file this three-year cycle report pursuant to Fla. R. Jud. Admin. 2.140(b).

Table of Contents I. Introduction ...... 2 II. 3 Year Cycle Recommendations ...... 3 A. The Fiduciary Lawyer-Client Privilege, F.S. 90.5021 ...... 3 B. Hearsay Exception: Wrongfully Causing Declarant’s Unavailability, F.S. 90.804(2)(f) ...... 4 C. Medical Negligence Expert Witness Certificate F.S. 766.102(12) ...... 5 III. Background and Purpose of 3 Year Cycle Review of Evidentiary Statutes ...... 6 IV. The 2000 and 2002 Supreme Court Opinions ...... 8 V. Criteria from the 2000 and 2002 Opinions ...... 9 VI. Conclusion ...... 9

Appendices

A. Proposed amendments B. Notice of Publication, The Florida Bar News, July 2012 C. Public, Committee, and Section Comments

RECEIVED, 05/30/201710:03:30 AM,Clerk,Supreme Court D. Statement of Position of The Florida Bar Board of Governors E. Notice of Publication, The Florida Bar News December 2012 F. Ch. 2011-183 G. Ch. 2012-152 H. Ch. 2011-233

Appendix D – 1 I. Introduction

CREC is proposing that sections 90.5021, 90.804(2)(f), and 766.102(12), Florida Statutes, be adopted as rules of evidence to the extent that they are procedural. (See Appendix A.) As required by Rule 2.140(b)(2), CREC’s proposal was published in The Florida Bar News and posted on The Florida Bar’s website. (See Appendix B.) CREC’s original proposal included sections 90.5021 and 90.804(2)(f), Florida Statutes, and sections 458.3175, 459.0066, 466.005, and 766.102(12), Florida Statutes, regarding the requirement that an out-of-state expert witness obtain a certificate from the Department of Health before testifying in a malpractice case. No comments were received.

Also as required by Rule 2.140(b), the proposals were submitted to The Florida Bar Board of Governors (BOG). CREC’s proposals were considered at the BOG’s May 18, 2012, meeting. Concerns were expressed by board members about the new requirements for out of state experts and the BOG tabled the issue. The committee again presented its report at the July 27, 2012, BOG meeting. The BOG voted 33-0 to approve adoption of sections 90.5021 and 90.804(2)(f), Florida Statutes, as rules of procedure to the extent they are procedural. The BOG voted to recommend rejection of the adoption of the medical malpractice expert statutes as rules of procedure (§§ 458.3175, 459.0066, 460.005, and 766.102(12), Fla. Stat.). The committee was asked to solicit further comments from sections and committees regarding the expert witness provisions and to report back to the BOG at a subsequent meeting.

CREC sought comments from all sections and committees of The Florida Bar. A number of public comments were received, primarily in opposition of the adoption of the medical malpractice expert statutes as rules of procedure. (See Appendix C.) At its September 21, 2012, meeting, CREC voted 26-0 to withdraw its recommendation that sections 458.3175, 459.0066, and 466.005, Florida Statutes, be adopted as rules of evidence. CREC also voted 14-13 to retain its recommendation that section 766.102(12), Florida Statutes, be adopted as a rule of evidence to the extent that it is procedural.

CREC appeared before the Board of Governors again at its December 7, 2012, meeting and reported on its new recommendation. The BOG approved by a vote of 36- 5 a motion to recommend that the Supreme Court reject adoption of section 766.102(12), Florida Statutes, as a rule of evidence on the grounds that it is

Appendix D – 2 unconstitutional, will have a chilling effect on the ability to obtain expert witnesses, and is prejudicial to the administration of justice. The BOG directed that a report be written outlining its objections and submitted to the Supreme Court. See Appendix D.

As required by Rule 2.140(b)(2), CREC published notice of its revised recommendations in the December 1, 2012, Florida Bar News. (See Appendix E.) As provided by the rule, any written comments were directed to be provided to the Court.

II. Three-year Cycle Recommendations.

A. Section 90.5021, Florida Statutes. The fiduciary lawyer-client privilege enacted in 2011 by Chapter 2011-183, Laws of Florida (see Appendix F), and codified at section 90.5021, Florida Statutes, should be adopted as a rule of procedure to the extent it is procedural. This recommendation was approved by CREC by a 30-1 vote. The Board of Governors concurred in this recommendation by a 33-0 vote. The statute reads as follows:

90.5021 Fiduciary lawyer-client privilege.— (1) For the purpose of this section, a client acts as a fiduciary when serving as a personal representative or a trustee as defined in ss. 731.201 and 736.0103, an administrator ad litem as described in s. 733.308, a curator as described in s. 733.501, a guardian or guardian ad litem as defined in s. 744.102, a conservator as defined in s. 710.102, or an attorney in fact as described in chapter 709. (2) A communication between a lawyer and a client acting as a fiduciary is privileged and protected from disclosure under s. 90.502 to the same extent as if the client were not acting as a fiduciary. In applying s. 90.502 to a communication under this section, only the person or entity acting as a fiduciary is considered a client of the lawyer.

(3) This section does not affect the crime or fraud exception to the lawyer-client privilege provided in s. 90.502(4)(a). Whether a fiduciary is entitled to the lawyer-client privilege when the fiduciary employs an attorney in connection with his or her fiduciary duties has been an issue in

Appendix D – 3 several cases. In Jacob v. Barton, 877 So. 2d 935 (Fla. 2d DCA 2004), a trustee was sued by a beneficiary alleging mismanagement of a trust. The beneficiary sought production of the trustee’s attorney’s billing records, which the trustee claimed contained privileged information. On certiorari review, the district court quashed the lower court’s order requiring the production of the records and directed the lower court to determine whether the beneficiary was the person who would ultimately benefit from the legal work performed by the trustee’s attorney. If that were the case, the beneficiary would be considered the “real client” and he, rather than the trustee, would be the holder of the lawyer-client privilege. Id. at 937. The Second District engaged in a similar analysis in the context of a guardianship in Tripp v. Salkovitz, 919 So. 2d 716 (Fla. 2d DCA 2006).

The new fiduciary lawyer-client privilege codified at section 90.5021, Florida Statutes, permits a fiduciary to maintain the lawyer-client privilege to the same extent as if he or she were not acting as a fiduciary. Under subsection (2), only the person acting as the fiduciary is considered a client of the lawyer, rather than the beneficiary or ward, thereby rendering the analysis in Jacob and Tripp irrelevant.

B. Section 90.804(2)(f), Florida Statutes. CREC also recommends that the new hearsay exception enacted in 2012 by Chapter 2012-152, Laws of Florida (see Appendix G) and codified at section 90.804(2)(f), Florida Statutes, be adopted as a rule of procedure to the extent it is procedural. This recommendation was approved by CREC by a 28-3 vote. The BOG concurred in this recommendation by a 33-0 vote. The statute reads as follows:

90.804 Hearsay exceptions; declarant unavailable.— . . .

(2)(f) Statement offered against a party that wrongfully caused the declarant’s unavailability.—A statement offered against a party that wrongfully caused, or acquiesced in wrongfully causing, the declarant’s unavailability as a witness, and did so intending that result. Section 90.804(2)(f), Florida Statutes, is essentially the same exception set forth in Fed. R. Evid. 804(b)(6) and is a codification of the common law rule that one who wrongfully procures the absence of a witness from court cannot complain of the admission of the hearsay statement of the witness. See Reynolds v. United States, 98 U.S. 145, 158–159, 25 L. Ed. 244 (1878). Section 90.804(2)(f), Florida Statutes, has

Appendix D – 4 been found to be procedural in nature and has been applied by the lower courts with the presumption that this Court will adopt it as a rule. See Mortimer v. State, 100 So. 3d 99 (Fla. 4th DCA 2012).

C. Section 766.102(12), Florida Statutes. CREC recommends that the medical malpractice expert witness provision enacted in 2011 by Chapter 2011-233, Laws of Florida (see Appendix H), and codified at section 766.102(12), Florida Statutes, should be adopted as a rule of procedure to the extent that it is procedural. The original proposal also included sections 458.3175, 459.0066, and 466.005, Florida Statutes, and was approved by CREC on January 26, 2012, by a vote of 22-1. CREC later withdrew sections 458.3175, 459.0066, and 466.005, Florida Statutes, from its recommendations by a vote of 26-0 as these statutes appeared to be substantive rather than procedural in nature. CREC reapproved its recommendation regarding section 706.102(12), Florida Statutes, by a 14-13 vote. The statute reads as follows:

766.102 Medical negligence; standards of recovery; expert witness.— (12) If a physician licensed under chapter 458 or chapter 459 or a dentist licensed under chapter 466 is the party against whom, or on whose behalf, expert testimony about the prevailing professional standard of care is offered, the expert witness must be licensed under chapter 458, chapter 459, or chapter 466 or possess a valid expert witness certificate issued under s. 458.3175, s. 459.0066, or s. 466.005. The Committee shares many of the concerns expressed in the comments received regarding section 766.102(12), Florida Statutes (see Appendix B). These concerns include the possibility that the statute might limit the field of available experts or discourage some out of state experts from testifying in Florida.1 The recommendation regarding section 766.102(12), Florida Statutes, is made in the context of the background and purpose of the three-year review process and the criteria that has emerged from that process (see discussion below). The recommendation is not and should not be viewed as an endorsement of this law or an opinion on whether the law may or may not be subject to a successful challenge when applied to a specific case. The Supreme Court has held in previous three-year cycle opinions that it will not

1 The Department of Health reports that 995 out of state experts have obtained their expert witness certificate as of January 29, 2013. See http://www.doh.state.fl.us

Appendix D – 5 consider extraneous arguments concerning the validity of statutes during the three-year cycle process but rather will wait for an actual case or controversy in which opposing sides have the opportunity to fully litigate and brief the issues under real, as opposed to hypothetical, circumstances.

III. Background and Purpose of Three-Year Cycle Review of Evidentiary Statutes

Under Art. V, § 2 of the Florida Constitution “[t]he supreme court shall adopt rules for the practice and procedure in all courts.” This amendment has been construed to prohibit the legislature from enacting laws that would govern a practice or procedure in court.

When the Florida legislature passed the Florida Evidence Code in 1976, the Supreme Court recognized that many provisions of the Code might violate Article V, because they governed or touched upon practice and procedure. To avoid disputes concerning the constitutionality of the Code under Article V, the Supreme Court by per curiam opinion in 1979 adopted the entire Evidence Code as a rule of procedure to the extent it was procedural. The court’s rationale for this action was “[t]o avoid multiple appeals and confusion in the operation of the court caused by assertions that portions of the evidence code are procedural and, therefore, unconstitutional because they had not been adopted by this Court under its rule-making authority.” In re Florida Evidence Code, 372 So. 2d 1369 (Fla. 1979).

In 1981 the Supreme Court adopted Fla. R. Jud. Admin. 2.130 (now 2.140) and ordered The Florida Bar to create the Code & Rules of Evidence Committee. The court directed that CREC report to the court every four years (now three) with recommendations regarding whether changes to the Code should be adopted as rules of procedure to avoid conflict with Article V. Although under Rule 2.140 The Florida Bar Board of Governors is required to vote on the CREC recommendations, CREC “may amend its recommendations to coincide with the recommendation [of the BOG] or may decline to do so or may amend its recommendations in another manner.” Rule 2.140(b)(4). From 1983 to 2000, CREC recommended that new evidentiary statutes be adopted as rules of procedure to avoid conflict with Article V and the Supreme Court did so.

Appendix D – 6 When the Supreme Court adopts a new evidentiary statute as a rule of procedure, it does so via published opinion, which in most cases simply states that the new statute “is hereby adopted by a rule of procedure to the extent it is procedural.” No separate rule of evidence is drafted or published. In effect, these series of Supreme Court opinions, most of them brief per curiam opinions, constitute the “rules” of evidence.2

In 2000, CREC for the first time recommended that a new provision of the Code, an exception to the hearsay rule, not be adopted as a rule of procedure. The BOG concurred with the recommendation. The court agreed with the CREC recommendation and did not adopt the new exception as a rule of procedure. In re Amendments to the Florida Evidence Code, 782 So. 2d 339 (Fla. 2000) (“2000 Opinion”).

In 2002, CREC recommended that a new Code provision addressing similar fact evidence in child molestation cases not be adopted as a rule of procedure. The BOG concurred in the recommendation. The court rejected the recommendation and adopted the statute as a rule of procedure. In re Amendments to the Florida Evidence Code, 825 So. 2d 339 (Fla. 2002) (“2002 Opinion.”)

In 2004, 2007, and 2011, CREC recommended that all new evidentiary statutes passed during these three year cycle periods be adopted as rules of procedure to avoid conflict with Article V. The BOG concurred with these recommendations. The court agreed with the recommendations and adopted the new statutes as rules of procedure. In its 2011 report, CREC also requested that a clarifying comment to sections 90.502 and 90.507, Florida Statutes, be added to address inadvertent disclosure of privileged communications. The court declined to adopt the requested comment because it “appears to address an issue of law we have not yet ruled on .” In re Amendments to the Florida Evidence Code, 53 So. 3d 1019, 1020 (2011).

2 In re Florida Evidence Code, 372 So. 2d 1369 (Fla. 1979); The Florida Bar. In re Amendment of Florida Evidence Code, 404 So. 2d 743 (Fla. 1981); In re Amendment of Florida Evidence Code, 497 So. 2d 239 (Fla. 1986); In re Florida Evidence Code, 638 So. 2d 920 (Fla. 1993); In re Florida Evidence Code, 675 So. 2d 584 (Fla. 1996); In Re: Amendment to the Florida Evidence Code, 782 So.2 d 339 (Fla. 2000); In re Amendments to the Florida Evidence Code, 825 So. 2d 339 (Fla. 2002); In re Amendments to the Florida Evidence Code–Section 90.104, 914 So. 2d 940 (Fla. 2005); Amendments to the Florida Evidence Code, 891 So. 2d 1037 (Fla. 2004); In re Amendments to the Florida Evidence Code, 960 So. 2d 762 (Fla. 2007); In re Amendments to the Florida Evidence Code, 53 So. 3d 1019 (Fla. 2011).

Appendix D – 7 The Supreme Court has stated in several opinions that in adopting new statutes as rules of procedure to avoid conflict with Article V, it otherwise expresses no opinion on the validity or substance of the statute until a true “case or controversy” comes before it. (See 2002 Opinion.)

IV. The 2000 and 2002 Supreme Court Opinions

To date, the only guidance concerning the criteria applied by the Supreme Court in determining whether a new evidentiary statute should be adopted as a rule of procedure is contained in the 2000 and 2002 Opinions.

In the 2000 Opinion, the court considered a new hearsay exception that is presently codified in section 90.803(22), Florida Statutes. This exception permits the admission of deposition testimony in lieu of live testimony without a showing of unavailability. The exception applies in both civil and criminal cases. Consistent with CREC’s recommendation, the court declined to adopt this exception as a rule of procedure primarily because of “grave concerns about the constitutionality of the amendment” under the Sixth Amendment confrontation clause.3 782 So. 2d at 342. The 2000 opinion is the only time since the adoption of the Code in 1976 that the court declined to adopt a change in the Code as a rule of procedure.

In the 2002 Opinion, the court rejected the recommendation of CREC that a new similar fact evidence rule in child molestation cases (§ 90.404(2)(b), Fla. Stat.) not be adopted as a rule of procedure. CREC based its 2002 recommendation upon the possible conflict between the new statute and section 90.404(1), Florida Statutes (character evidence is inadmissible to prove person acted in conformity with that character trait); section 90.404(2), Florida Statutes (similar fact evidence is inadmissible when relevant only to prove bad character or propensity); and section 90.104(2), Florida Statutes (court should permit inadmissible evidence from being suggested to the jury). In a 4-3 opinion, the court adopted the statute as a rule of procedure to avoid conflict with Article V. As in their other opinions, the court

3 While the court focused on the constitutionality of the law, the court also stated that its decision was also based upon “many of the concerns” raised by opponents. The court did not identify which of the other concerns it found significant. The other concerns, however, included direct conflict with existing rules of procedure regarding use of depositions.

Appendix D – 8 declined to express an opinion on the substantive issues regarding the new statute because of the absence of a “true case and controversy” before the court.

V. Criteria from the 2000 and 2002 Opinions

The 2000 and 2002 opinions provide guidance concerning the criteria that should be employed by CREC in evaluating a new evidentiary statute and determining whether it should recommend its adoption as a rule. If the evidentiary statute is procedural in nature, these opinions appear to establish the following criteria for rejection of the statute as a rule of procedure4:

1. Does the evidentiary statute directly conflict with a procedural constitutional right (e.g., the fifth or sixth amendment) so that compliance with the statute would necessarily violate the constitution? (See 2000 Opinion.)

2. Does the evidentiary statute directly conflict with another procedural rule (civil, criminal, etc.) to the extent that compliance with the statute would necessarily violate the procedural rule? (See 2000 Opinion.)

CREC has determined that none of the statutes contained in this recommendation directly conflict with a procedural constitutional right or another procedural rule.

VI. Conclusion

Based on the foregoing, the Code and Rules of Evidence Committee of the Florida Bar respectfully requests this Honorable Court to adopt sections 90.5021, 90.804(2)(e), and 766.102(12), Florida Statutes, as rules of procedure to the extent they are procedural.

4 An additional criteria was suggested by the 2002 dissent but not adopted by the majority, and can be stated as follows: Does the evidentiary statute directly conflict with another provision of the Evidence Code so that compliance with the new statute would necessarily violate another provision of the Code?

Appendix D – 9 Respectfully submitted January 30, 2013 .

/s/Thomas D. Shults _/s/ John F. Harkness, Jr

THOMAS D. SHULTS, ESQ. JOHN F. HARKNESS, JR. Executive Director Chair, Code & Rules of Evidence Committee The Florida Bar

KIRK-PINKERTON, P.A. 651 E. Jefferson Street

240 S. Pineapple Avenue, 6th Floor Tallahassee, FL 32399-2300

Sarasota, FL 34236 (850) 561-5600

(941) 364-2425 Florida Bar No. 123390

Florida Bar No. 0363219 [email protected] [email protected]

Appendix D – 10 CERTIFICATION OF COMPLIANCE I certify that these statutes were read against Westlaw.

I certify that this report was prepared was prepared in compliance with the font requirements of Fla. R. App. P. 9.120(a)(2).

/s/ Ellen H. Sloyer Ellen H. Sloyer, Staff Liaison Code and Rules of Evidence Committee 651 E. Jefferson Street Tallahassee, FL 32399 850/561-5709

Appendix D – 11 Supreme Court of Florida

______

No. SC13-98 ______

IN RE: AMENDMENTS TO THE FLORIDA EVIDENCE CODE.

[July 10, 2014] REVISED OPINION

PER CURIAM.

The case is before the Court upon the motion for rehearing filed by the

Florida Bar Code and Rules of Evidence Committee. We grant the motion for rehearing, withdraw our prior opinion dated December 12, 2013, and substitute the following in its place:

We have for consideration the regular-cycle report filed by the Florida Bar

Code and Rules of Evidence Committee (Committee) concerning recent legislative changes to the Florida Evidence Code (Code), see ch. 2011-183, § 1, Laws of Fla.; ch. 2012-152, § 1, Laws of Fla.; and to section 766.102(12) of the Florida Statutes, see ch. 2011-233, § 10, Laws of Fla. We have jurisdiction. See art. V, § 2(a), Fla.

Const.

Appendix D – 12 The Committee recommends that the Court adopt the above provisions to the extent that they concern court procedure. The amendments at issue in this case are those enacted by the Florida Legislature since this Court last considered amendments to the Florida Evidence Code. See In re Amends. to the Fla. Evidence

Code, 53 So. 3d 1019 (Fla. 2011). For the reasons discussed below, we decline to adopt two of the Committee’s three recommendations.

In chapter 2011-183, section 1, Laws of Florida, the Legislature enacted section 90.5021, Florida Statutes, which establishes a “fiduciary lawyer-client privilege.” According to the Committee, whether a fiduciary is entitled to the lawyer-client privilege when the fiduciary employs an attorney in connection with his or her fiduciary duties has been an issue in several cases; for example, the

Committee cites Jacob v. Barton, 877 So. 2d 935 (Fla. 2d DCA 2004), and Tripp v.

Salkovitz, 919 So. 2d 716 (Fla. 2d DCA 2006). We decline to follow the

Committee’s recommendation to adopt the new provision of the Code because we question the need for the privilege to the extent that it is procedural.

In chapter 2012-152, section 1, Laws of Florida, the Legislature amended section 90.804 to include the hearsay exception of “Statement offered against a party that wrongfully caused the declarant’s unavailability.” See § 90.804(2)(f),

Fla. Stat. (2012). According to the Committee, the provision is a codification of the common law rule that one who wrongfully procures the absence of a witness

Appendix D – 13 from court cannot complain of the admission of the hearsay statement of the witness. See Reynolds v. United States, 98 U.S. 145, 158-59 (1878). We adopt chapter 2012-152, section 1, Laws of Florida, to the extent that the provision is procedural.

Finally, in chapter 2011-233, section 10, Laws of Florida, the Legislature created section 766.102(12), Florida Statutes, which provides as follows:

766.102 Medical negligence; standards of recovery; expert witness.

(12) If a physician licensed under chapter 458 or chapter 459 or a dentist licensed under chapter 466 is the party against whom, or on whose behalf, expert testimony about the prevailing professional standard of care is offered, the expert witness must be licensed under chapter 458, chapter 459, or chapter 466 or possess a valid expert witness certificate issued under s. 458.3175, s. 459.0066, or s. 466.005.

§ 766.102(12), Fla. Stat. (2012). The Committee voted 14-13 to recommend that the statutory provision be adopted as a rule of procedure to the extent that it is procedural. The Board of Governors voted 34-5 to recommend that the Court reject the Committee’s proposal, on the grounds that the provision is unconstitutional, will have a chilling effect on the ability to obtain expert witnesses, and is prejudicial to the administration of justice. Numerous comments were filed with respect to this proposal, all in opposition to its adoption. After hearing oral argument and carefully considering the Committee’s recommendation

Appendix D – 14 in light of those comments, we decline to follow this recommendation due to the concerns raised.

Accordingly, the Court declines to adopt chapter 2011-183, section 1 or chapter 2011-233, section 10, Laws of Florida, to the extent they are procedural.

The Court adopts chapter 2012-152, section 1, Laws of Florida, as provided in the appendix to this opinion to the extent that the provision is procedural. Our adoption of the amendment is effective retroactively to the date the amendment became law.1

It is so ordered.

LABARGA, C.J., and LEWIS, QUINCE, POLSTON, and PERRY, JJ., concur. PARIENTE, J., concurs in part and dissents in part with an opinion. CANADY, J., concurs in part and dissents in part with an opinion.

THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE EFFECTIVE DATE OF THESE AMENDMENTS.

PARIENTE, J., concurring in part and dissenting in part.

I concur in the majority’s decision to decline to adopt chapter 2011-183, section 1, and chapter 2011-233, section 10, Laws of Florida, to the extent they are procedural, for the reasons stated in the majority opinion. I dissent, however, from the majority’s decision on rehearing to adopt chapter 2012-152, section 1, Laws of

1. Chapter 2012-152, section 1, Laws of Florida, became effective on April 27, 2012.

Appendix D – 15 Florida, in light of my continued concerns as to the constitutional implications of this provision as it is applied.2

Specifically, chapter 2012-152, section 1, which added a new hearsay exception to section 90.804(2), Florida Statutes, entitled “Statement offered against a party that wrongfully caused the declarant’s unavailability,” raises potential Sixth

Amendment issues. Clearly, the constitutionality of the amended statute is not currently before us, and a determination of its constitutionality will require the consideration of this doctrine as applied in an actual case or controversy, where the statement of an unavailable declarant is admitted pursuant to this newly added hearsay exception and the issue is raised and argued by the parties. When this

Court previously has had significant constitutional concerns regarding a new provision in the Florida Evidence Code, however, the Court has declined to adopt the statutory amendment as a rule. See In re Amends. to the Fla. Evidence Code,

782 So. 2d 339, 341 (Fla. 2000) (declining to adopt the former testimony exception to the hearsay rule because of constitutional concerns and awaiting a “case or controversy” in order to pass on the constitutionality of the legislation itself).

2. In the past, and in the absence of significant concerns, this Court has generally approved of amendments to the Florida Evidence Code based on statutes passed by the Legislature, with the proviso that we were adopting the provisions as rules “to the extent they are procedural.” In re Amends. to the Fla. Evidence Code, 782 So. 2d 339, 342 (Fla. 2000). Recognizing that “the Florida Evidence Code is both substantive and procedural in nature, this Court has adopted the Evidence Code as originally enacted as well as later amended by the Legislature.” Id.

Appendix D – 16 In support of the amendment, the Florida Bar Code and Rules of Evidence

Committee asserts that chapter 2012-152, section 1, is merely a codification of the common law, and that Giles v. California, 554 U.S. 353 (2008), “confirms” that this provision is constitutional. In adopting the Committee’s proposal to the extent it is procedural, the majority simply cites to the Committee’s reliance on Reynolds v. United States, 98 U.S. 145, 158-59 (1878), as support for its position that chapter 2012-152, section 1, codifies the common law. While not itself an endorsement of the statute’s constitutionality, the majority’s failure to refer to the more recent pronouncement of the United States Supreme Court on this issue in

Giles, also cited by the Committee, leaves this Court’s analysis and approval of the proposal incomplete. A thorough review of Giles demonstrates that this issue is more nuanced and complex than the Committee contends.

In Giles, the Supreme Court addressed “whether a defendant forfeits his

Sixth Amendment right to confront a witness against him when a judge determines that a wrongful act by the defendant made the witness unavailable to testify at trial.” 554 U.S. at 355. Reviewing the doctrine of “forfeiture by wrongdoing,” which at common law permitted the introduction of statements of a witness who was “detained” or “kept away” by the “means or procurement” of the defendant, the Supreme Court explained that the forfeiture exception “applied only when the defendant engaged in conduct designed to prevent the witness from testifying.” Id.

Appendix D – 17 at 359. The Supreme Court stated that the “manner in which the rule was applied

[at common law] makes plain that unconfronted testimony would not be admitted without a showing that the defendant intended to prevent a witness from testifying.” Id. at 361.

As further articulated by the Supreme Court:

In cases where the evidence suggested that the defendant had caused a person to be absent, but had not done so to prevent the person from testifying—as in the typical murder case involving accusatorial statements by the victim—the testimony was excluded unless it was confronted or fell within the dying-declarations exception. Prosecutors do not appear to have even argued that the judge could admit the unconfronted statements because the defendant committed the murder for which he was on trial.

Id. at 361-62 (emphasis added). In other words, “American courts never—prior to

1985—invoked forfeiture outside the context of deliberate witness tampering.” Id. at 366.

Although the Supreme Court acknowledged in Giles that it had previously approved a Federal Rule of Evidence for “forfeiture by wrongdoing,” which the state version enacted by the Florida Legislature in 2012 tracks, the Supreme Court emphasized that the requirement of intent in the rule is critical and has been interpreted narrowly by commentators and treatises to mean “that the exception applies only if the defendant has in mind the particular purpose of making the witness unavailable.” Id. at 367 (quoting 5 C. Mueller & L. Kirkpatrick, Federal

Evidence § 8:134, p. 235 (3d ed. 2007)). Thus, as Giles makes clear, the specific

Appendix D – 18 intent of the defendant to deliberately prevent the witness from testifying through bribery, intimidation, or other means is of constitutional significance in any analysis of the “forfeiture by wrongdoing” rule:

The absence of a forfeiture rule covering [conduct designed to prevent a witness from testifying] would create an intolerable incentive for defendants to bribe, intimidate, or even kill witnesses against them. There is nothing mysterious about courts’ refusal to carry the rationale further. The notion that judges may strip the defendant of a right that the Constitution deems essential to a fair trial, on the basis of a prior judicial assessment that the defendant is guilty as charged, does not sit well with the right to trial by jury. It is akin, one might say, to “dispensing with jury trial because a defendant is obviously guilty.” Crawford, 541 U.S., at 62.

Id. at 365.

The Supreme Court also noted that, at common law, the doctrine of

“forfeiture by wrongdoing” was “never” invoked in murder prosecutions like

Giles, where the victim’s prior statements inculpated the defendant. Id. at 367.

Moreover, in rejecting a broader interpretation of the “forfeiture by wrongdoing” doctrine, which was advanced by the dissenting opinion in that case, the Supreme

Court stated that its narrow interpretation of the intent requirement in the common- law forfeiture rule was supported by “the common law’s uniform exclusion of unconfronted inculpatory testimony by murder victims (except testimony given with awareness of impending death) in the innumerable cases in which the defendant was on trial for killing the victim, but was not shown to have done so for the purpose of preventing testimony.” Id. at 368.

Appendix D – 19 The problem and possible constitutional implications of the doctrine of

“forfeiture by wrongdoing,” now included in the Florida Evidence Code, are thus not with the concept itself, but with the way it may be applied—that is, what will be the predicate for admissibility? Although agreeing in Giles with the Supreme

Court’s historical analysis of the narrow “forfeiture by wrongdoing” doctrine,

Justice Souter, joined by Justice Ginsburg, still remained concerned about the constitutional implications of this doctrine if not applied in a limited way, stating as follows in a separate concurring-in-part opinion:

As the Court demonstrates, the confrontation right as understood at the framing and ratification of the Sixth Amendment was subject to exception on equitable grounds for an absent witness’s prior relevant, testimonial statement, when the defendant brought about the absence with intent to prevent testimony. It was, and is, reasonable to place the risk of untruth in an unconfronted, out-of-court statement on a defendant who meant to preclude the testing that confrontation provides. The importance of that intent in assessing the fairness of placing the risk on the defendant is most obvious when a defendant is prosecuted for the very act that causes the witness’s absence, homicide being the extreme example. If the victim’s prior statement were admissible solely because the defendant kept the witness out of court by committing homicide, admissibility of the victim’s statement to prove guilt would turn on finding the defendant guilty of the homicidal act causing the absence; evidence that the defendant killed would come in because the defendant probably killed. The only thing saving admissibility and liability determinations from question begging would be (in a jury case) the distinct functions of judge and jury: judges would find by a preponderance of evidence that the defendant killed (and so would admit the testimonial statement), while the jury could so find only on proof beyond a reasonable doubt. Equity demands something more than this near circularity before the right to confrontation is forfeited, and more is supplied by showing

Appendix D – 20 intent to prevent the witness from testifying. Cf. Davis v. Washington, 547 U.S. 813, 833 (2006).

Id. at 379 (Souter, J., concurring in part) (emphasis added).

With the adoption of the “forfeiture by wrongdoing” doctrine as narrowly set forth in section 90.804(2), the critical question, as demonstrated by Giles, will be the establishment of the procedure for how the unavailable declarant’s out-of-court statement could be admitted into evidence in a manner consistent with the

Confrontation Clause, which considerably restricts the scope of this hearsay exception. Although the Supreme Court’s opinion in Giles may be read to prevent the use of unconfronted statements in the circumstance of a murder prosecution where the victim’s prior statements inculpated the defendant—by limiting the admissibility of statements to cases of deliberate witness tampering, id. at 361-62

(majority op.)—the key question for trial courts, as they apply this new hearsay exception in practice, will be to determine the predicate for admissibility. While the Committee asserts that Giles “confirms” the constitutionality of the new exception, Giles explains that a Confrontation Clause violation can be avoided only if the “forfeiture by wrongdoing” doctrine is applied in a narrow manner.

By simply adopting this proposal to the extent it is procedural but not explaining the procedures for admissibility that are at the heart of this exception and its constitutional implications, I am concerned that we are neither promoting the administration of justice nor furthering the goals of the Florida Evidence Code,

Appendix D – 21 which is designed to ensure and increase the reliability and quality of evidence admitted in Florida courts. Because of the nuances connected with this issue, I would await a case or controversy to consider this statute, determine its constitutionality, and, if constitutional, ensure that the procedures for the predicate for admissibility are clearly set forth.

CANADY, J., concurring in part and dissenting in part.

I concur with the majority’s decision to adopt the rule proposal based on chapter 2012-152. I would, however, also adopt the two other rule amendments recommended by the Code and Rules of Evidence Committee. I therefore dissent from the rejection of those two proposals.

Original Proceedings – Florida Bar Code and Rules of Evidence Committee

Thomas Charles Allison, Chair, Code and Rules of Evidence Committee, Fox Rothschild LLP, West Palm Beach, Florida; Thomas D. Shults, Past Chair, Code and Rules of Evidence Committee, Kirk-Pinkerton, P.A., Sarasota, Florida; John Harkness, Executive Director, and Ellen Sloyer, Bar Staff Liaison, The Florida Bar, Tallahassee, Florida,

for Petitioner

Wayne Lawrence Helsby, Winter Park, Florida, Theodore C. Eastmoore, Sarasota, Florida, and Hector Antonio Moré, Orlando, Florida, on behalf of The Trial Lawyers Section of the Florida Bar; Jay Cohen of the Law Office of Jay Cohen, P.A., Ft. Lauderdale, Florida; Scott Ramsey McMillen of McMillen Law Firm, Orlando, Florida; Stuart Z. Grossman, Neal Allan Roth, Andrew B. Yaffa, Seth Eric Miles, Brett Elliott Von Borke, Natasha Santiago Cortes, Susan C. Odess,

Appendix D – 22 David Marc Buckner, and Robert Cecil Gilbert of Grossman Roth, P.A., Coral Gables, Florida; Gary M. Cohen of Grossman Roth, P.A., Boca Raton, Florida; William E. Partridge and Patrick Stephen McArdle of Grossman Roth and Partridge, Sarasota, Florida; Sean C. Domnick of Domnick and Shevin PL, Palm Beach Gardens, Florida; James William Gustafson, Jr. of Searcy Denney Scarola Barnhart & Shipley, P.A., Tallahassee, Florida; Larry Scott Stewart of Stewart Tilghman Fox Bianchi & Gain, P.A., Miami, Florida; and Lee Delton Gunn, IV of the Gunn Law Group, Tampa Florida,

Responding with comments

Appendix D – 23 APPENDIX

Chapter 2012-152, § 1:

90.804 Hearsay exceptions; declarant unavailable

(1) [No Change]

(2) HEARSAY EXCEPTIONS. —The following are not excluded under s. 90.802, provided that the declarant is unavailable as a witness:

(a)-(e) [No Change]

(f) Statement offered against a party that wrongfully caused the declarant’s unavailability A statement offered against a party that wrongfully caused, or acquiesced in wrongfully causing, the declarant’s unavailability as a witness, and did so intending that result.

Appendix D – 24